Compassion & Choices at the Supreme Court

"Equal justice under law." Described in a few words, the charge of the U.S. Supreme Court is straightforward and sincere. Yet in reality, political quagmires can plague this court, making the motive of the cases before it even murkier than the questions of law it must decide.

This term, the court is faced with rendering a final decision regarding Gonzales v. Oregon, with arguments scheduled to begin in October. Formerly called Oregon v. Ashcroft, this case was brought by the state of Oregon, an Oregon physician and a group of terminally ill Oregonians challenging the U.S. Attorney General's attempt to use the federal Controlled Substances Act to sanction doctors who issue prescriptions under Oregon's assisted-dying law.

The Case

The case began in 2001, when former attorney general John Ashcroft directed agents of the Drug Enforcement Administration to take action against doctors who wrote such prescriptions. In the lawsuit challenging the attorney general's action, a U.S. District Court and the Ninth Circuit Court of Appeals sided with Oregon, concluding that the Controlled Substances Act did not give the attorney general such authority. John Ashcroft had overstepped his bounds.

Mr. Ashcroft resigned his position in late 2004, but his successor, Alberto Gonzales, has chosen to continue the crusade against Oregon doctors and their terminally ill patients. He appealed to the U.S. Supreme Court, which is scheduled to hear the case on October 5, 2005.

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Our Role

The patients who are plaintiffs in the case are clients of Compassion In Dying of Oregon, an affiliate of Compassion & Choices. Kathryn Tucker, legal director of Compassion & Choices, represents patients in this suit, serving as co-counsel with Nico van Aelstyn of Heller Ehrman White & McAuliffe. Ms. Tucker was also counsel in the Glucksberg v. Washington and Quill v. New York cases; it was the 1997 Glucksberg decision that invited the states to grapple with the question whether to legalize assisted dying. Compassion & Choices assists financially with the case.

This is a battle that we must win. If the attorney general prevails, Oregon's assisted-dying law will not be nullified, but it will be mercilessly gutted. Terminally ill patients would still have the legal right to ask their doctor for a prescription to end their lives, and the right to take that medication if necessary -- but any doctor who wrote a prescription would risk being branded a drug trafficker, and even going to prison.

We have high hopes that the Supreme Court will see this case in the same light as the other federal courts have. The Controlled Substances Act is meant to prevent interstate drug trafficking. It was not written to police legitimate medical practice, even less to put family doctors behind bars. In the words of the Ninth Circuit Court, the Ashcroft-Gonzales attempt "contradicts the plain language of the Controlled Substances Act, and contravenes the express intent of Congress."

Our Issue at the Supreme Court

This isn't the first time the Supreme Court has decided cases that are central to the choice-in-dying movement. Two 1997 decisions brought the issue to the public forefront and established a standard of letting states decide this issue for themselves -- a precedent the court should recall when considering Gonzales v. Oregon.

In Glucksberg v. Washington and Quill v. New York, both sponsored by Compassion In Dying, terminally ill patients and their doctors argued that the right of terminally ill, mentally competent adults to hasten death was protected by our Constitutional rights to privacy and equal protection. The court concluded that was not the case, instead leaving the question of assisted dying to individual states to decide.

In a mixed decision issued in 1990, the court determined that Nancy Cruzan, who had been in a persistent vegetative state for seven years, had the right to have life support discontinued if clear and convincing evidence showed that was her wish. However, the court did not think sufficient evidence had been presented. New evidence presented in a lower court eventually allowed Ms. Cruzan's life support to be withdrawn.

Recently, the court refused to hear an appeal in the case of Terri Schiavo in Florida, finding insufficient grounds for further review.

What's Happening Now

While we anticipate that the Supreme Court will agree with the lower courts' analysis, nothing is guaranteed. Advocates of choice in dying must put our full efforts behind its defense, and that advocacy comes with a price tag.

Since early 2005, Compassion & Choices has spearheaded a fundraising drive among members, supporters and others to raise funds for the Supreme Court fight. Through our publications, mailings and membership efforts, we are striving to increase public awareness of this important battle.

Our members and local groups are also joining the fight. Our Indiana chapter held a specific fundraiser for the Supreme Court case, and has thrown down the gauntlet to other chapters to do the same. Member contributions earmarked for Gonzales v. Oregon help lay the groundwork for this fight -- each one puts us one step closer to victory.

If you're interested in helping, please contact us by email at info@compassionandchoices.org or by calling 800.247.7421. We, and the terminally ill patients in Oregon, are grateful that we can count on your support at this defining moment for choice in dying.

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